DE SEPULTURA. By Sir HENRY SPELMAN, KNIGHT. LONDON, Printed by ROBERT YOUNG, and are to be sold by Matthew Walbancke and William Coke. Anno 1641. DE SEPULTURA. AS it is a work of the Law of Nature and of Nations, of human and divine Law, to bury the Dead▪ so it is to administer that which necessarily conduceth to it, the Place and Office of burial. Gen. 4. 11. Lucan speaking to Caesar touching them he left slain in Pharsal. lib. 7. pa. 7. 161. Nil agis hac ira, tabesne cadavera solvat, An rogus, haud refert; placido natura receptat Cuncta sinu, finemque sui sibi corpora debent. So likewise that of Maecenas— Sepulit natura relictos. If man were so impious as not to afford it, the earth to his shame will do it: she will open the pores of her body, and take in the blood; she will send forth her children, the worms, to bring in the flesh of their brother; and with her mantle, the grass, as with a winding-sheet, she will enfold the bones and bury all together in her own bosom. Men (in passion) refuse oftentimes to do it to their enemies, to wicked persons, and to notorious offenders; but she, as a natural mother that can forget none of her children, doth thus for them all both good and bad; teaching us thereby▪ what we should do for our brethren, and branding those with impiety that answer with Cain, Am I my brother's keeper? The drift of my speech tendeth to the reproof of a custom grown up amongst us Christians, not heard of, I suppose, among the Barbarians, Selling of graves and the duty of burial; wherein I desire a little liberty to express myself somewhat at large, as being one of the motives that led me the rather to this discourse. There seemeth if not a warrant, yet a precedent for it in the book of Genesis, Chap. 23. where Ephron selleth a burying place to Abraham, but St. Jerome censureth Ephron very hardly touching that matter, even as though he had committed some point of Symonle, or of great impiety; and saith, that for this taking of money for the burying place, O, the letter of perfection was struck out of his name, and that in stead of Ephron, which signifieth perfect, he was afterwards called Ephran, that is unperfect. The Scripture I confess maketh no such mention, nor Josephus, nor any other ancient that I can find: I blame not therefore Calvin that he accepteth it not, but for that he sleighteth that noble Father so lightly as to term it a very toy. I hold Calvin much inferior to Meras nugas. Austen, yet Austen professed himself inferior to Jerome: what warrant Jerome had for it I know not, all men take him for no Imposter; I suppose (and so might Calvin) that he had it from the Rabbins, because he entitleth that book of his Quaestiones et traditiones hebraica in Genesin: but all▪ are not of Calvin's mind, many of the Fathers and counsels do well accept it. For my own part, I incline with Calvin to the excusing of Ephron; for both he and the hittites, as though it were against nature to take any thing for burying of the dead in their soil, gave Abraham free liberty, not only to bury, but to do it where he would, even in the chiefest of their sepulchers. This contented not Abraham, he would not only have usufructum rei, the fruition of burial, but dominium loci, the inheritance of the soil itself. To sell this I should think it lawful, though not the other in any case: lawful to sell the Patronage of a Church, not the Presentation, Institution, or Induction. Pretium loci in quo humand●● F. de relig. & sumpt. funeral. funeris. est, a man may take by the civil law, but there was a necessity that Abraham must have the very soil proper and solely to himself: for the circumcised might neither dead nor alive mingle with the uncircumcised, as at this day the Christians not with Infidels, the faithful not with heretics or Excommunicate persons. In this also Ephron was content to satisfy Abraham, and whereas he requested no more than the cave of Meschepelah, Ephron not only granted him the cave, but the whole field also wherein the cave was, and that as a free gift, if Abraham would so accept it; but Abraham refusing to have it by gift, bought the whole field and by right of appendency had the cave with it. Nothing in all this do I see but nobleness and bounty in Ephron, nor any just impediment why he might not at first have demanded the price of the field▪ much less why he might not take it, being pressed upon him, as well as Araunah took more money of David for the threshing floor, where he was to build an Altar and to sacrifice unto God. All this notwithstanding, because the scope of the money taken by Ephron was for burial of the body that then wanted it, and not for the soil of the field, but for the Sepulchre, as Saint Stephen testifieth, Jerome Act. 7. 16. utterly condemneth it, and the rather (perhaps) for that Adam and Eve were said to be buried there, for of such monuments he was somewhat curious. Yet did he not so much reprove this taking by Ephron, as the vice and sin of our time in requiring and exacting money for burial, which beginning then to creep into the world, gave the Church a just occasion both to censure and condemn it by many Constitutions, Canons and Decrees; whereof I will recite some, which I conceive are at this day in force (as touching the substance of them) in our Church, though neglected and not observed by our churchmen. Nereida a noble woman complaining to Gregory Canon I. Lib. 7. Epist. 53. et simile ibid. Epist. 4. ad Messalinum Episc. the Great, that Januarius the Bishop of Sardin● blushed not to require a hundred shillings for the burial of her Daughter; Gregory by a decretal Epistle to him, saith, we have utterly forbidden this vice in our Church, and do not suffer so bad a custom should in any case be usurped. If Ephron a Pagan were so considerate as to refuse it, how much more ought we to do it that are called Priests? We therefore admonish, that from henceforth none attempt this vice of covetousness in any Churches. But if at any time you permit any to be buried in your Church, and that his next kinsman or heirs will of their own accord offer any thing for lights, we forbid▪ not that to be taken, but to exact or ask any thing, we utterly forbid, lest that (which were most irreligious) the Church peradventure might be said to be sold (which God forbid,) and you also to seem glad of men's deaths, if you reap any commodity out of their carcases. But a blow or two could not kill this serpent, Canon II. for iniquity hath many heads. Some, as it seemeth, in the council of Tribury, Anno 899▪ made a question, utrum terra coemiteriata vendi posset pro Sepultura? whether money might be taken for graves in the churchyard? The council answered No. In Ecclesiastico namque etc▪ for it is written in Ecclesiasticus, Deny not courtesy unto the dead, for we all shall die: And again, All things that are of earth, do return to earth. Earth, why sellest thou earth? Remember that thou art earth, and shalt go to earth, that thou must die, and that death is coming towards thee and lingereth not. Remember that the earth is not man's; but, as the Psalmist saith, The earth is the Lords, and they that dwell therein. If thou sellest this earth, thou art guilty of invading the goods of another. Thou hast received it freely from God, give it freely for his sake. We therefore absolutely forbid all Christian people to sell earth for the dead, and to deny burial due unto them, unless the kindred or friends of the dead person, in the name of the Lord, and for redemption of his soul, will of their own accord give any thing. The council of Nan's recited by Burchard, and Canon III. the council of Varens all Vasens delivered by Gratian, do both in the self same words thus condemn it: Praecipiendum &c. It is to be commanded (say they) according to the authority of the Canons, that for graves and the burial of men no reward be exacted, unless he that is dead did whilst he lived appoint somewhat of his goods to be given to the Church, in the yard whereof he is buried: or that those to whom the bestowing of his alms, after his death, is committed, will out of their own accord give somewhat of his goods; but nothing may in any case be exacted by the Priests there, or by them that have the government of the place. It is also to be commanded according to the Constitutions of our Elders, that none upon any case be buried in the Church, but in the yard, porch, or vaults of the Church, &c. The council of Toures under Alexander III. cap. Canon IV. Non satis, saith, For Sepulture and for receiving Uncture and oil, let no man attempt to exact any kind of reward, nor to defend his offence therein by colour of any manner of custom; for the length of time doth not diminish sins but increaseth them. It is true that all these were no more then▪ provincial Synods and Constitutions, yet their judgements did determine this point to be a grievous sin, and seemed to be so orthodoxal, that they since are taken into the body of the common Law, and now as powerful, general, and obligatory, as the other parts thereof. But we will rise higher and see what general counsels have conceived and decreed herein. The twelfth general council, wherein both Canon V. the Churches, Greek and Latin, were assembled by the same Alexander at Lateran in the year 1180. cap. Cum in Ecclesiae corpore, saith, The buying and selling that is reported to be in some Churches is too horrible; as that somewhat is required for installing Bishops, Abbots, and all kind of ecclesiastical persons in their seats; for inducting Priests into their Churches, and for sepulture and funeral rites, for benediction of the married couple, and for other sacraments▪ verily many think it lawful, because they suppose the law of custom hath got authority by long continuance; not considering that offences are so much the more grievous, by how much the longer they have ensnared the wicked soul of man. Therefore, lest these things should be done hereafter, we straightly forbid any thing to be exacted either for conducting of ecclesiastical persons to their seats, or for Institutions of Priests, or burial of the dead, or benediction of them that marry, or for other Sacraments, either conferring, or collated. But if any man shall presume to do the contrary, let him know that he hath his portion with Gehezi; that is, that he standeth accursed, and, as the gloss interpreteth it, that he is a Symonist. The next general council, a very great one in Canon. VI. Circa an. 1198. the same place, under Innocens the third, continueth the same prohibition touching buriallfees: but because the former bridled the Clergy in taking that was not their due, this curbeth also the perverseness of the Laity, in withholding their just duties: the words be these, Ad Apostolicam, &c. It is common to the Apostolic ear by frequent relation, that some Clerks, for the burial of the dead, and blessing the married couple, do exact and extort money: and if it chance that their covetous desire be not satisfied, they fraudulently allege some feigned impediment. On the other side, some laymen, levened with heretical pravity, under the pretence of canonical piety, do endeavour to break a laudable custom brought into the Church by the godly devotion of the faithful. Hereupon we forbid all exactions to be made, and command all godly customs to be observed; that ecclesiastical Sacraments be freely conferred: but that they which maliciously endeavour to change a laudable custom, may upon knowledge of the matter be suppressed by the Bishop of the place. Note, that the customs protected by this Canon must be godly and laudable. As for the Canon Abolendae, which aimeth Can. VII. chiefly at those, who, like the Monks of Mount Pessulan, will not suffer the ground to be broken before they be paid for the grave, I purposed to pass it over, supposing none that serveth in the house of God to be so covetous or cautelous, as not to stay for his money till he had delivered his ware: But in the mean time, a complaint was brought unto us of a churchman (since deceased) and his clerk, that came together to the house of one of their Parish, who was then newly dead, and speaking with the Executors, would not suffer the body to be brought out of the house, till he had 14. l. paid to him and the Parish Officers, according to a bill of particulars then showed unto them: nor could the Executors compound with them for any abatement more than ten shillings in the clerk's share, and paid them thereupon 13. l. 10. ●. Against such, amongst other, is this Canon under the rubric, Terra caemiteriata pro sepultura vendi non debet, in these words, Abolendae consuetudinis perversitas, &c. There is grown up (as is reported) a perverse custom that must be abolished at Mount Pessulan, where they will not suffer the grave to be digged open for them that die, till there be a certain price for the ground, wherein they are to be buried, paid unto the Church. we command, that you, being Bishop of the place, do prohibit the clerks from exacting any thing at all in this case. The complaint was for exacting of money before the grave was opened, but the Canon forbiddeth it both before and after. Nota (saith the gloss) quòd pro terra in qua sepeliendi sunt defuncti, nihil est exigendum. Decretal. Gr. l. 3. Td. 39 de parochiis c 13. I might, as the phrase is, girando Canonum volumina, produce many other Authorities whereby this sin is vehemently impugned and cried down: but I will not plough with an ox and an ass together; I will not join those Constitutions, which for the most part are national and provincial, with these I have recited, being general, either by their birth, as springing from general counsels, or by adoption, as taken out of provincial counsels and Decrees into the body of the Canon Law, and made thereby as general and obligatory as the rest: for all these together, with all other parts of the Canon Law, as they have been heretofore in use, and that are not repugnant to the laws and Religion of the kingdom, or repealed by the Statutes 25. H. c. 8. 19 27. H. 8. c. 15. 35. H. 8. c. 16. 3. Ed. 6. ca. 11. of Hen. 8. or of later time against papal usurpation, are still in force, as I conceive, and as was lately seen in two great cases, wherein every corner of the Canon Law, as well remote as obvious, ancient as the later, were searched out either pro or contra. As for the 32. Commissioners that by the Sat. of 25. H. 8. cap. 19 & 3. E. 6. c. 11. should have pruned the Canon Law, and cut off the unnecessary branches, nothing A book was prepared, not finished or established. was done thereupon, so that it still remaineth as it was before. But admit that neither these, nor other positive Constitutions extended to our Ministers, will they not be a law unto themselves, and abstain from that which is declared to be wicked and unjust by so many godly men, so many Fathers, counsels, and Decrees of the Church? Let us then consider the counsels and Canons that we have recited; and see first, what opinion they have of money taken for burials: and secondly, how they censure and decree touching it. First, for their opinion, they declare it to be a Can. I. Greg. ad Januar. Regist. lib. 7. Epist. 55. vice, a vice of covetousness, a bad custom, that may be said most irreligious, as a selling of the Church, a cause of joy to the Parson when men die, and a reaping of commodity out of carcases of the dead, and sorrow of the living. 2. A discourtesy to the dead by him that must Can. II. Concil. Tribur. die, a selling of earth by him that is earth, a selling of that is none of his own, a selling of what was given freely to give freely, a denying of burial. 3. A thing too horrible, that bringeth the portion of Can. V. Concil. general. Literan. Gehezi upon the offender, that is the brand of Simony, as the gloss expoundeth it, a curse, an uncleanness, and cause of separation from common society. Lastly, as maladies are the most grievous and Can. VII. Concil. Turon. Can. V. Concil. gener. Lateran. Can. VII. Decr. l. 3. & 28. c. 13. contagious that continue longest: so they conclude this to be so much the more grievous, by how much the longer it hath continued; and declare it to be abolendae consuetudinis perversitas, the perversity of a custom is to be abolished. I am loath to use these heavy terms of aggravation; yet they proceed not from me, but from the clergy themselves against the Clergy themselves, from the body against a member, from the Fathers, the Doctors, the Decrees of the Church, and great general counsels, against some private, particular and incorrigible offenders. The sum of their censure and decrees is this, 1. That nothing be exacted or required for any sepulture; which word the gloss declareth to Cap. Abolendae ver. Sepultura, col. 1207. comprehend the ground or place of burial, and the ministry of the Priest or Parson about the same. And in some of the Canons it is particularly so expressed. 2. That all customs for such taking, are evil, impious, and void. 3. That the offence in taking is Simony. 4. That the cognisance thereof belongeth to the Bishop of the place. 5. That gifts of piety for use of the Church, may notwithstanding be taken. 6. That none should be buried in the body of the Church. There is a fiction that Achelous fighting with Hercules, and not able to resist his force, shifted himself into divers forms, thereby to illude it. So the Canonists try many evasions to help their Masters of the Clergy in this point of taking, by distinguishing the places of burial, the persons that take, the time of taking, and the manner of demanding. For the place, they say there be three sorts, Lopurus, Of the place. Locus religiosus, and Locus sacer: according to the civil Law, locus purus is that which is more Locus purus. secular ground, never used for burial, nor having any kind of consecration. To this they say the Canons do not extend, for that it is some private Decr. Greg. cap. Abolend. ver. Sepultur. And Grat. Can. 12. q. 2. man's; and the owner, if he will, may take money for a grave there; for, Nemo tenetur de suo beneficium facere, No man is tied to give his ground to a charitable use. Locus religiosus is that which is Locus religiosus. assigned to some office of Religion, and nominately where the body of a dead person hath been buried. For by the very burial of that body, the nature of the soil is changed from secular, and, in reverence of this new function, counted to be religious; and now therefore by the Canons nothing may be taken for any more graves there. Some such places (I suppose) are about this City adjoining to churchyards, for enlarging thereof, and some of them for which the owners do take a yearly rent of the Parish that useth it, letting it unto them to sow dead men's carcases in, as it were to sow corn, and as though the carcases should grow up (like the fable of Cadmus) and bring them a crop to pay the rent with. This the Canons do merely forbid, as doth also the civil Law, and Law of humanity, the Fathers, the counsels, and the opinion of S. Jerome in the case of Ephron. For mine own part, I take it to be a kind of usury to let that for money, whereof the hirer can make no kind of profit. It may be said, that they might have chosen, when they first hired it, whether they would use it so or no; and it is true: but after the thing is done, and the place thereby become religious ground by being made a burying place; now to let it in that kind, is (I say) against the Canons. Locus sacratus is that which by the donation Locus sacratus. of the owner is settled upon God and the Church for some divine and ecclesiastical service, and then consecrated thereto by the Bishop, is thereby severed from human property, as be our Churches and churchyards; the mere property whereof, which we call Fee-simple, is said to be in nubibus, and abaiance, though the Parson, Patron, and Ordinary, for necessities sake, might make a conveyance of them. But to dispose them, or any part of them contrary to the will of the Donor, the nature of the gift, and the glory of him that is the Supreme owner, (God Almighty) is by these canon's Simony, sacrilege, and extreme impiety. Hereof there must therefore be no buying or selling; and in this, no doubt, the Canonists are right. Thus much for the place of Sepulture. Touching the parties that take money for the office Of the parties. or ministry of burial, they say that the Canons extend not universally to all Clergy men, but to such only as are beneficed, or have pensions for doing the Church duties, or serving the cure; not to those which are sine titulo, sine salario, without benefice or stipend, and that they may therefore take what they can get; for, It is not inconvenient Nec est inconveniens quod Clericus locet operas suas, cùm non habeat undè vivat. Decr. Gr. l. 5. 29. ver. pro exequiis. (saith the gloss) that a clerk should sell his pains, if he have not whereon else to live. The rest of the clergy they leave under the Canons, yet with such shelter, and so many starting holes, as the Canons may play upon them, but not hurt them: For as time changeth, so they change the case, observing a difference in taking money before burial, and in taking after; to take aforehand, they say, is utterly unlawful, for that it implieth a buying and selling by example of Tradesmen, who first take their money, and then deliver their ware: but, expleto Non ergò prohibetur quam liberaliter oblat. satis benè possit recipi sine peccato, exclusa cupiditatis labe. Jo. de Athon, tit. de Sacram. §. 1. v. labe. officio, when the duty is once performed, they may take what is voluntarily given them, without danger of the Canons, which we shall further examine in the next Paragraph. Yet mark in the mean time the tenor of the first Canon, Quaesta est: Nereida complained that the Bishop velit exigere, would exact 100 s. of her for the burial of her daughter; which complaint must needs be after the burial, it being in Sardinia, and Saint Gregory writing from Rome, or those parts; yet expleto officio, the burial being past, Gregory would suffer nothing to be taken, no not upon voluntary gift to the use of the Bishop; but for the public use of the Church, as for ligh●, &c. he allowed that to be taken that was voluntarily offered, and no otherwise. So likewise doth the Canon, praecipiendum, or third Canon. The second Canon also giveth liberty to offer somewhat for the soul of him that is dead, but nothing to be given for the grave, or burial service. The manner of taking is of three sorts, by exaction, Of the manner. demanding, and voluntary gift. Exaction is ordinarily conceived to be a wring of that is not due from the party, or of more than is due, like the Monks of Mount Pessulan, to refuse burying of the body till they had their pretended duty: or like them in the Canon ad Apostolicam, that allege feigned impediments and excuses to raise the market by delaying the burial: or when the burial is past, like Januarius the Bishop of Sardinia, to urge and insist upon the demand. These no doubt are sharp exactions; but the word includeth smother courses: Tit. Symonia ca. firmit. verb. exigatur. lib. 4. Etymolog. & division, juris universi exposit. John Calvin ab Cuble Lexic. Lindewode expoundeth it to require or take à nolente, of him that would not part with it. Calepine saith, that Lactantius useth it for convenienter postulare: John Bellonus, that exigere est petere, exactio est petitio, and that the exactores tributorum were so called à petendis tributis, which the Lexicon of the civil and Canon Law doth also deliver: So that to exact is not only to wring it from the party, but to demand or require; and to demand or require, is to exact. In this manner the fifth Canon either useth them Synonimally, or complaineth of one abuse in the preamble, or provideth against another in the decree. To put it out of doubt, the first Canon useth both the words, Peti verò aliquid, aut exigi omnino prohibemus: We utterly forbid any thing to be either asked or exacted: and it setteth exigi in the later place, as though exigere were less than petere; or, as Lactant. taketh it, convenienter postulare. Note also, that this Canon was made against asking or exacting after the burial, as before we have touched. All this notwithstanding, I must truly confess (for I deal with Argus and Briareus, them that have all perspicuity and assistance) that there is no express word in any of these Canons, against giving or taking simply, though I think there be enough to satisfy indifferent judgements. Yet if it be a defect in them, I have a help for it here at home in our own provincial Constitutions, where, in a Synod at Westminster, assembled by Richard Archbishop of Canterbury, I find it thus decreed under the rubric, Ne quid exigatur pro Sacramentis Statuimus ergo ut de caetero. conferendis Ca. Dictum est, &c. we therefore ordain, that from henceforth neither for Ordination, nor for chrism, nor for baptism, nor for extreme unction, nor for Sepulture, nor for the Communion, nor for Dedication, any thing be exacted, but that the gifts of Christ be given with free dispensation, and let him that doth the contrary be accursed. So that if they must be given freely, nothing surely must be taken for them, either ex obliquo, or by evasion. It may be said, they require nothing by way of price for the ground or Sepulture: for the fourth Canon is, ut nulla cujusquam pretii exactio attentetur, but as a reward from the party by way of gratuity. Who knoweth not that pretium signifieth a reward, as well as a price? and for mine own part, I doubt not but that the Canon doth so intend it: yet, to clear the point, the words of the third Canon are expressly, ut nihil muneris exigatur, that no reward be required. I suppose by this time the offenders in this kind have left the plain field of the Canons, and taken themselves to their last hope and Castle of refuge, custom and prescription, where it now resteth to beat them out. Every man knoweth that evil customs are in their own nature to be abolished; and those that be good, yet if there be a positive law against them, they are also void. The nature of this custom by the collection we have made out of the Canons, is not only declared to be excessively bad, but, by the great general council of Dateran, to be very horrible, and consequently to be abolished; but being positively against the Canon, it is in ipso hoc directly void; though there were no clause or provision in them so to denounce them, yet ad majorem cautelam, the fourth and fifth Canons do expressly overthrow that custom, and besides do brand it with this note of infamy, the elder the worse, and the longer it hath continued, the more grievous. The Parsons have now a shrewd Crow to pull, for the Canonists themselves will confess all this to be true. What then remaineth with Achelous, seu versare dolis, seu certo occumbere? Corax must now help them with a quirk to cozen the Canons, and to slide from them, or they are undone. Well, hear Jo. de Athon, one of the pole-starres of our English Canonists; Let him (saith he) that asketh any thing in this case, take heed to himself; for if he ask and take it for his duty, or for the ground, or for sepulture, he is gone, for it is Simony: And for proof thereof, all allege some of the Canons we have recited, with divers other, and the opinion of Hostiensis; and saith further, that a custom will then do him no good, as appeareth by the Canon of Otho, which he is there in hand with, and that of non satis in the Extravagant, by us also expressed &c. But (saith he) if he demand it when his duty is done, in this manner, for that every one that dieth, or is installed, hath used to give so much to the Priest or Church, than he shall prevail, and doth justly require it. For confirmation hereof, he produceth the resolution of Innocent▪ and other Authorities: And that Hostiensis saith infallibly, that this is true, touching the duty of the Laity towards the Church; in so much, as though this exhibition of the Lay men tends to the overfilling of the belly of the Clerks; yet it may be demanded, as he noteth in the Extravagants, Tit. Simony, ca. Jacobus: And Athon saith, That he believeth it to be true, not respecting the inordinate gluttony, but the right of the Church, alleging other Authorities to confirm it. F. 1. To the same purpose is the opinion of Lindewode, the other polestar of our English Canonists, and with the same words in part. tit. Simonia, ca. 1. Sepulture (saith he) must not be sold, and (citing 8. q. 2.§. Item queritur per Jo. & Co. ibi sequentibus, de sepult. ca. abolendae) saith, that it appeareth there in the text and gloss, that in a sacred place, as in a Church or Church-yard, nothing must be required for sepulture, no nor yet for the office of burial, as Bernard there noteth. And this is true as touching his office, because a Clerk by reason of his benefice is tied unto it. But it is otherwise, if he be not tied thereto by reason of his Benefice, and so that he doth not contract to have it, for than it is Simony; (Extrav. eod. tit. ca. in tantum, secundum Hostiens. & ca. non satis) yet the gloss saith, in the end of the said chapter, abolendae, that though Clerks may not require any thing for such sepulture, yet the Laity may be compelled to observe godly and laudable customs. And mark, according to the note of Hostiensis, in the same Chapter, That he that requireth to have the custom performed to him, must take heed to himself; for if he demand it for the ground, or for his duty, he is down, and it profiteth him nothing to allege a custom (ut dicto capite abolendae:) But if he saith that for every dead body so much hath been usually given to the Priest, or to the Church, than he shall obtain it: as in ca. ad Apostolicam Extrav. eod. & vide gloss. hic similem 13. q. 2.§. Item quaeritur. Linw. fo. 201. Here is a left-hand way to slip by all the Canons, let us consider it. May the Parsons frame their custom as they list? Is it like a Proteus, or Lesbian Ruler? Are they not tied to the matter of fact, to the manner and form of payment? Are Mood and Figure only University observations? Let them be well advised in laying their customs so, lest the Jury find an Ignoramus. It hath fallen upon me to be an unworthy member of that most noble and most gracious Commission of exacted fees and innovated offices, and thereby to have notice by certificate of divers Parsons, Vicars, and chief Parishioners of most of the greatest Parishes of London, yet none of them hitherto (to my remembrance) have made any such claim, nor know I how they should prove it if they did. I will stir no coals, nor prosecute this point any further, for the duty, love, honour, and great observation I bear unto them; but I entreat, with vehemency, that both they and the rest of their coat will think seriously of it, and if not always, yet when in their Sermons they justly fall upon the oppressions, extortions, raising of rents, &c. by Landlords and laymen. For this bird of theirs is a winged sin, hatched of late within this city, but crept already into the neighbour Towns, and will shortly fly (if the wings be not clipped in time) over all the kingdom. Oh, let not that of Jeromy be once spoken of this noble city, From the Prophets Cap. 23. 15. of Jerusalem is wickedness gone forth into all the Land. As this sin, and the Canons lie sore upon the Ministers, for taking money for graves in the chancel, and for their pains in burying the corpse wheresoever: so do they upon some other, who little dream of it, the churchwardens of Parishes that sell graves in the Church and churchyard like ware in their shop, and when they think fit, make laws in their Vestry for raising the price, as they do in their Halls for the price of their ware. If they look the third Canon, they shall find themselves contained there under a fair stile, Them that have the government of the place, (meaning, of the Church, and Church yard, and Parish) so that though they be laymen, yet by misusing the things of the Church, they fall into the same offence and penalty respectively that Church men do▪ and have their portion assigned them with G●●●zi, as in the fifth Canon. I have heard what some of them answer; That it is no benefit to ourselves, it is for the good of the Parish, for repairing the Church, the Bells, the Steeple, to help out some extraordinary charge that falls upon the Parish; and if some small matter be spent upon a Parish Audit, or a Quest-house dinner, it is an Agape, or Feast of love, and no man will grudge or repine at that, our Predecessors did it before our time, and our Successors will do it when we are dead and gone. All is done by an assembly of the vestry, by consent of the Masters and chief of the Parish subscribed, and testified under their hands. Well, let their vestry on God's name be a Consistory for well ordering of the things of the Church, it is fit it should be so; but let it not be a Parliament, that a dozen or sixteen private persons (I will not meddle with their trade or quality) should change or abrogate any superior Constitutions, much less those of Synods and general counsels, nor to make orders to bind, like a law, the rest of the Parish that consented not. What they have used to do time out of mind, I call not into question; but those Vestries that within these thirty years or thereabout, have left their ancient form, supported by a lawful prescription, and contrived to themselves a now society, power, and jurisdiction over the rest of the Parish, countenanced by an instrument from the Ordinary, under the seal of his Chancellor; and (as new things must have new names) are commonly styled Selected 〈◊〉. I ●●e the Bishop's names are used in them, whether their assents and knowledge, I am doubtful. I assure myself their Lordships would do nothing against the Law, and I understand not by what Law they may at this day erect such Societies, or endow them with such Authority as is pretended. But to deal plainly, I think those Instruments confer more money upon the Chancellors, than authority upon the Vestries; for (by those that I have seen) the Bishop or Chancellor granteth nothing to them, but relating that they have considered the form of a vestry desired by some of the Parish, they allow, approve, or confirm it, and yet no otherwise then (with a Quantum in nobis est) as far forth as lawfully they may, and no otherwise. Nor have they this shadow of authority otherwise then upon condition, that they shall do nothing that may trench upon the jurisdiction or profit of the ecclesiastical Court. What have they now for their money? Or more (in effect) then if a private man had granted them as much? No doubt, many of the wise Parishioners do perceive it, and some Parishes have renounced it, and are turned back to their ancient vestry: yet neither of them keep their bounds; for the one and the other take upon them not only to make orders in the nature of by. Laws to bind their Parishioners, but to set and raise fees and duties of the Church, and Church-Officers at their pleasure, as appeareth by many Tables produced before us. But see what they have gotten that claim their fees or duties by such Vestry Orders, or unlawful Authority: for prescription will not now help them, in so much as the original of their fees appeareth to be by the Table, and the Table cannot defend them, for that the Authors of it had no authority to make such assessments, and so consequently they can neither justify the claiming of their fees or duties, either by the one or other; and the Vestry-men perhaps may be in danger of an unlawful assembly to change laws, or to have their offence strained very high, if severity should examine it. Give me leave to present to you what I find in a vestry-constitution lately made, and subscribed by the Parson and churchwardens, 24. Nov. 1627. with twenty three more of that Assembly, confirmed by the Bishop, approved by his chancellor, declared to be a laudable custom of that Parish, and in testimony thereof entered (as a solemn Act) in the principal Registry of the Lord Bishop of the diocese; and finally, ratified with Dat. 25. April. 1628. the chancellors hand and Seal of Office: I may say, vidi, puduitque videre. But hear the paroels only touching the Parson and churchwardens for the point in hand. ss d Whosoever will be buried in the chancel, shall pay to the Parson as shall be agreed.— — For interring the corpse,— 10— 0 In the isles of the chancel. To the churchwardens for the ground,— 26— 8 To the Parson for interring the corpse,— 6— 8 In the Body of the Church. ss d To the churchwardens for the ground,— 20— 0 To the Parson for interring the corpse,— 6— 8 In the churchyard. ss d ss d To the Parson for interring the corpse,— coffined, 2— 8 uncoffined, 1— 4 To him in like manner for every child under seven years,— coffined, 2— 8 uncoffined, 1— 4 All these double of every Stranger. I meddle not with the Constitutions of 4. L. to the Parson for a Pew in the chancel, nor of 15. ss. 20. ss. 3. L. 3. L. 10. ss. for places and pews in other parts. But these and many other of the like sort fall in one Certificate. In another Parish I find six shillings eight pence to the Parson for the duty of burial in the Church, when himself doth it not, but his Curate, who for his pains hath by the same Certificate ten shillings more, besides other ten shillings for a Sermon (though there be none.) But to go a little back to the first demand, touching burying in the chancel, which is not definite in quoto, but positive ex imperio, that whosoever will be buried there, shall pay to the Parson as shall be agreed. It is to be noted, that here is no custom, and consequently then, whereas the Parson thinketh the advantage lieth on his side, to take what he list, he is now excluded by all the Canons from taking any thing at all: For the buckler that should defend them is the Canon Ad Apostolicam, and the breadth of that extendeth no further than to protect them that fight under a custom, which also must be pious and laudable, otherwise it covereth not any. And consequently, whilst they stand upon terms, and allege the chancel to be their free hold, and that they may as freely dispose it at their pleasure, as laymen may of their lands, they fall into the foul pit of Simony, if they were looked after. The grave is the only inheritance that we are certainly born to, the inheritance which our Grandmother the earth hath left to descend in gavelkind among all her children: Shall one enter, and hold another out, or drive him to pay a fine pro adeunda haereditate, as they say in the feodal Law, or pro ingressu habendo, as we in the common Law? Is our tenure base like a copyhold ad voluntatem Domini, and not rather noble by frank Almoigne, free from all payments and services? How do Apoc. 14. 13. the dead rest from their labour, if they be vexed with payments? How go they to their grave in peace, if they pay for their peace? Laborat aere alieno qui debito tenetur, and his peace is not worth thanks, if he must pay for it: he payeth for his peace, if he payeth for the place where his peace cannot otherwise be had: he payeth for his rest, if he cannot enjoy it without payment: he payeth for his Inheritance if he cannot enter into it without a fine pro ingressu; his inheritance settled upon him by the great Charter, Terram dedit filiis hominum: A royal gift, but as it is used, malè collocatum, ill distributed. The poor man (alas) hath nothing of all this for his portion but the grave, and may not now have that, unless he pay for it. Well, To whom should he pay? Reason answereth, If to any, to the owner of the soil. True, But the owner of the soil was the Founder of the Church, and he, out of piety, zeal, and charity, gave the Church freely for Prayer, the churchyard freely for burial, absque ullo retenemento, without any rent, any service, any reservation. Nor could he (if he would) have done otherwise, for the Canons would not suffer him: Nor though he were the absolute owner, yet if he had reserved but a pepper corn out of a grave, it had been not only void, but execrable. A pepper corn? what talk we of a pepper corn? no ground in the kingdom is now sold so dear as a grave. That poor little Cabinet, that is not commonly above five foot long, and a foot and half in breadth, where there is no room to stir either hand or foot, and the roof, as Saint Bernard saith, lieth so low, as it toucheth the nose, this silly Cabinet is sometimes in the churchyard sold to the poorest man for sixteen pence, sometimes for two shillings eight pence, sometimes three shillings, sometimes six shillings; in the Church it self at ten shillings, twenty shillings, forty shillings, three pound, four pound, &c. in the chancel; at twenty shillings, forty shillings, three pound, four pound, five pound, yea, ten pound: and yet the purchaser hath no assurance of it, but is constrained to hold ad voluntatem Domini, or as a Tenant for seven or ten years, within which term he is oftentimes cast out, and another put into his room, and no Writ of Quare ejecit infra terminum lieth for him. Shall I tell what I was ashamed to hear? A grave or burying place let to farm at twenty shillings a year, the rent duly paid for divers years, and being then behind, the Parson threatened to uncase the corpse by pulling down the Monument if it were not satisfied; and shame was so far from him, as he spared not to defend it even before the Commissioners: To whom it was likewise testified, that another had made forty pound of one grave in ten years, by ten pound at a time; Strange things to me, what to others I know not, but I suppose, cinctutis non exaudita Cethegis; the oldest man living hath not heard the like. Is it not time that his majesty should do as he doth, that like Josias he should reform the Temple, the House of God? God be blessed that put it in his heart, and grant him well to finish the work in hand, being so noble, so pious, and so full of necessity. I said the Church was given freely by the Founder for Prayer, and the churchyard freely for burial; what reason can then be alleged, why the dead should rather pay for going into the grave, than the living do for going into the Church? Or why do not the living pay as well for the one, as the dead for the other. Alas, mortuo leoni & lepores insultant, a little child may pull a dead lion by the beard, but the least dog alive will turn again upon the tallest man. I have here a fair occasion to speak of another great abuse, the extreme exacting money for pews; but I will hold me to the matter in hand, and for a conclusion, give me leave to upbraid our Ministers with that Iliad. 7. pag. 128. golden Edict of Agamemnon in Homer touching the slaughtered Trojans, his enemies. {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman}. Turnus in Vir. Aen. 10. useth the like courtesy in burying his enemy Pallas. Quisquis honos famuli, quicquid solamen humandi, Largior— And it is said that the Turks in this point cry out upon us Christians. {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} I will that nought be taken for the grave; But that the dead shall freely burial have. O shame to our religion that heathens and soldiers should be more gracious to their enemies, than a Christian Minister to his friends and brethren. But, ferrea nunc aetas, &c. I am now led, where I was loath to come, to show the nature and penalty of this sin. But that niceness is too late, since Jo. de Athon, Hostiensis, divers Canons, and some other former passages have already so manifestly discovered it to be Simony, Decr. Greg. lib. 3. cap. 6. under which title it therefore standeth ranked in the books of Canon-Law with this censure and penalty, sicut simoniaca pestis, &c. as that pestilent disease of Simony doth exceed in greatness all other diseases, so immediately as soon as the signs thereof shall appear by the relation of any person, it ought to be cast out, and banished from the house of God; So odious is the contagion thereof in the Canon Law, as it receiveth all criminous and infamous persons to become accusers, even the bondman against his Lord. It induceth suspension, Ibid. c. seq. irregularity, excommunication, curses, deprivation, &c. many penalties not put in execution. The cognizance and reformation thereof, as of all other enormities in Church and churchmen, were anciently in the clergy themselves; till King Henry the second perceiving that many horrible crimes committed by clerks were either smothered up in secret, or smoothed over upon examination with some slight punishment; (for nothing in the Canon Law is mortal) he therefore obtained in the great council of Clarendon, to have them tried for capital matters before his secular Judges, which first cut the hamstrings of ecclesiastical Jurisdiction, and became a perpetual precedent for the laiming of it afterward in other members: for hereupon the succeeding Parliaments from time to time, as they found the clergy either sleeping or exorbitant in using their Jurisdiction, pulled somewhat à Consistorio Cleri ad Praetorium Regis, from the Canon-Law to the Common-Law; and by little and little have brought the great sea of their old authority to a narrower compass; which, if my Lords the Bishops look not the better to, will (I fear) be yet contracted and diminished. They are not ignorant what hath been attempted against them in this kind in Queen Elizabeth's time and since, and that there be about four hundred persons which observe their courses very strictly. Their Lordships trust their chancellor, Commissaries, Arch-Deacons, and officials with the canonical government of their flocks, and these, in many places, desiring money rather than amendment, do so shave and pelt the people, that the cry thereof is very grievous, and will (no doubt) produce some other reformation, if it be not (as I said) helped by themselves in time. They were wont to limit their own fees and the fees of their officers in the provincial Synods, as appeareth by diverse of them. But their successors kept them so badly, that although the Synod Steph. Mepham. Archiep. Cancer. Jo. Stratford in Synod. London. of London in the year 1342. had given a good smart allowance for the probate and business of a testament, as twenty shillings at least, of the money of that time for every hundred pound of the Inventory: yet the market by Henry the eighth his time was grown to that height, that a thousand marks were said to be exacted for the probate business of one man's testament (Sir William Comptons' by name;) which gave the Parliament in the twenty second of the same King such discontent, as they would trust the Clergy no longer to be their own Carvers, but made a special Statute See Hollinsh p. 911. in that point to bridle their exactions: And so likewise about Mortuaries and corpse▪ present. Now the authority they had is gone by their submission, Anno 25. Hen. 8. and the Statute thereupon then made: So as at this day they have no authority, either by Diocesan or provincial Synods, to set any fees but in their Convocation by assent and confirmation of his majesty under the great seal. In which course none have been taxed since the said Statute, till 27. Eliz. and then none touching An. 1584. any other than officers of ecclesiastical Jurisdiction, and Courts, not Parsons, Vicars, Ministers, churchwardens &c. And not otherwise also in the Constitutions of the Synod of London, 25. Octobr. 39 Eliz. & Jac. 1. where the Lord An. 1597. cap. 135 Archbishop of Canterbury hath power given him to determine of some questionable fees touching the said officers, but no farther; so that the rates and taxes of fees of Parsons, Vicars, Ministers, churchwardens, and the like, which I have often seen to be countenanced and authorized by the Ordinary of the diocese, his chancellor, or other officers under their hand and seal (as far as my understanding can discover) are without sufficient warrant, and against the Law. What fees the Parson may take. But when all is done, it must not be forgotten that somewhat doubtless may be due unto the Parson upon the burial of the dead, for why else should divers Canons provide that the bodies of those which die, be not carried to burial out of their Parish, lest the Priest should thereby lose what is due unto him. And though the Canon ad Apostolicam forbid exacting of money for burials, yet it preserveth godly and laudable customs in that kind, and prescribeth a course for suppressing their malice that shall attempt to break them. a De corona milit. cap. 3. 13. 8. Tertullian maketh often mention of oblations for them, not only at the time they die, but in their Anniversaries; and particularly of husbands for their wives. So doth b De castit ●u●la. lib. 3. Epist. 6. lib. 4. Ep. 5. Cyprian in diverse passages, calling them sometimes oblations, sometimes Sacrific●a; and speaking of oblations, saith, that the Ministers had an allowance out of them for their maintenance. c lib. 1. Epist. 7. Hospinian therefore is deceived, that supposeth them to have had their growth under d ●●b. de Orig. templorum. Act. 87. 6. Gregory the Great. e Apollonius in his book against the Montanists, saith, that Montanus sub nomine oblationum, muneta artificiosus accepit. Hist. trip. lib. 5. cap. 16. But it is said that the Franciscan and Dominican Friars, about 550. years since, invented to get money by persuading the people the burial in Churches and the nearer the Altar was much the better. But in this, doubtless, he is not deceived, that Priests and monks, leading the people on in this Superstition of prayers and oblations for the dead, raised thereby an excessive benefit to themselves. For they made hereby the place of burial, which was public, to become their own in private; and then, selling it for money, show themselves more impious than the barbarous Ephron, that freely offered Abraham his burial field. It is now therefore to be considered, which be those laudable customs that may come within the protection of this Canon: for they doubtless are inexpugnable though not easily to be expressed, for that they may differ according as devotion hath begotten them in any place or Parish. But be they what they may (I labour not on that;) my drift is only to show that they must not be those which are now in use, to take money for the grave or office of burial; for these cannot be said to be godly or laudable customs, since so many Canons have declared them to be vicious, impious, injurious, irreligious, too too horrible, & the more grievous by their longer custom and continuance, and therefore damneth and annuleth them by express words, how ancient or how general soever they be. If you will put me to name some such custom as may seem laudable and canonical, I will present you with that which Hostiensis, Athon, and Lindewode deliver upon their credit to be authentical in the Parish, where it hath been so used; viz. That for every one that dyeth there, so much hath usually been given unto the Priest or Church. This they say will hold out water; but, as I said before, I fear me none of our Parsons can maintain it in this form. Another is that we call a mortuary; which was thus paid: The Lord of the fee had the best beast of the defunct by way of an Heriot, for the support of his body against secular enemies; and the Parson of the Parish had the second as a mortuary for defending his soul against his spiritual Lib. 1. tit. de consuet. c. 1. Lindew. 161. in gloss. fo. 15. adversaries. I know the provincial, and Lindmode following it, do say that the Mortuary wasgiven in recompense of personal tithes forgotten or omitted; but, under correction, I doubt of that; because, that in the ancient formulary of wills, and by the Canon of the Synod of Exeter, it is expressly directed, that in all of them, there shall be an especial Legacy of some what to the Parson for tithes and oblations forgotten or pretermitted; and if a Mortuary were for the some reason, than had the Parson in many places two several recompenses for one and the same thing. It were very unreasonable also that a poor man having nothing tythable but three horses, should give the second of them to the Parson for tithes omitted, when he whose tithes are worth 40. or 50. pounds a year giveth no more; nor is it like an Heriot, which by contract between the Lord and Tenant was reserved upon the original grant. But the Statute of 21. Hen. 8. cap. 6. hath turned these kind of Mortuaries into certain sums of money, according to the value and estate of the Parishioner deceasing, and forbiddeth any thing to be otherwise taken either for mortuary or corpse present (which I conceive to be, when the corpse is carried either thorough or into another Parish) than where it died. Other customs there may be also, which the Canon accounteth laudable; as where money was anciently given for lights in the Church, or for praying for the soul of the deceased. The Parson it may be doth enjoy it at this day not mentioning the original, and so it behooveth him to do, lest the King be entitled to it by the Statute of Superstitions uses. And it may be that the money now paid for graves, was anciently the same that was given for praying for the soul of the dead. For Mr. Fox reciting some laws of Canutus, hath this for one; Pecunia sepulturae, justum est, ut aperta terra pag. 165. reddatur: Si aliquod corpus â suâ parochiâ deferatur in aliam, pecunia sepulturae &c. In english (saith he) It is meet and right, that in funerals money be given for opening the earth: If anybody or corpse be carried from his own Parish into another, the money of the burial shall pertain by the Law to his own Parish Church. This Law cometh home to the point in hand, & maketh very materially for the Parson, and therefore I blame them not if they lay good hold on it as a warrant of antiquity, to show both their right and their custom. But you must know, that this Law was not written originally in Latin, but in Saxon: And that the translator hath not delivered it faithfully. Canuti LL. Eccles. cap. 13. The Saxon is this: & saƿlsceat is rihtoest ꝧ man symle geleft a oet opoenum graefe. & give man oenig lic os riht gerist seire elleshƿoere lege geloeste man ƿone saƿelsceat sƿa ðeoh into ƿam mynrtƿe ðe hit to hind; that is, It is just that the soul-shot (or money given for praying for the soul) be always paid at opening of the grave: And if the corpse be buried elsewhere then in its own Parish, yet let the soul-shot be paid to the Church, to which it belongeth. It is taken verbatim out of the Synod of E●nham, holden by Alpheage Archbishop of Canterbury, and Wulstan Archbishop of York, about the year 1009. in the time of King Etheldred, and now in a secular Parliament (as I may call it) confirmed by Canutus. But the old Latin manuscript copy of that Synod cleareth the question, in these words: Cap. 14. Munera nec non defunctorum animabus congruentia puteo impendantur aperto; Let the gifts also that are given for the behoof of souls of the dead be paid (or delivered) at the opening of the grave. This Canon neither commandeth any thing to be paid for the grave, nor yet for the soul, but only limiteth the time when that which is given for the soul should be paid. He therefore that translated Canutus laws out of Saxon, did not truly express saulesceat by pecunia sepulturae, nor Mr Lambard (who rather affected eloquence then propriety) by pecunia sepulchralis: But Mr Fox more unfaithfully by englishing the Latin. It is meet and right that in funerals money be given for opening the earth, as though the Law required that money should be paid for the grave, whereas that it speaketh of, was only for praying for the soul, which by the Canons might lawfully be taken, and is that, which they also intend should be paid unto the Parish Church of the deceased, when the body is elsewhere buried; for so an ancient paraphrastical copy of Canutus laws doth express it: Si quis corpus parentis aut amici sui ex propria parochia aliàs portare ad sepeliendum voluerit, faciat priùs certitudinem parochiae ad quam pertinet, scilicet redditus quod Angli saulesceat vocant, quod rectè persolvi debet ad apertum sepulchrum. Now it appeareth how this grave-silver or money for graves grew up to be taken. It was first given for praying for souls and such like, but that being abolished and given to the King, the Parsons it seemeth take it for the grave. And to say what I think, do now take that which was given for praying for the soul, under their fee for their office of burying the corpse, and this for the grave besides, for they take them both. But I say no more. This Tract was written Anno 1630. FINIS.